State v. Farinholt

• Decision Date: 06 April 1983
• Docket Number: No. 254,254
• Citation: 54 Md.App. 124,458 A.2d 442
• Parties: STATE of Maryland v. Robert Louis FARINHOLT.
• Court: Court of Special Appeals of Maryland

Page 124

54 Md.App. 124

458 A.2d 442

STATE of Maryland v. Robert Louis FARINHOLT.

No. 254.

Court of Special Appeals of Maryland.

April 6, 1983.

Stephanie J. Lane, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Arthur A. Marshall, Jr., State's Atty. for Prince George's County and R. William Hale, Asst. State's Atty. for Prince George's County on brief, for appellant.

Gary W. Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on brief, for appellee.

Submitted before WILNER, GARRITY and ADKINS, JJ.

GARRITY, Judge.

On January 8, 1982, the Circuit Court for Prince George's County granted a motion dismissing criminal charges against Robert Louis Farinholt, the appellee, because the State had failed to provide appellee with a trial within 180 days as required by Md.Rule 746. Pursuant to Md.Cts. & Jud.Proc.Code Ann. § 12-302(c), the State has appealed the dismissal.

The record shows that on April 1, 1981, two Montgomery County police officers observed the appellee in the company of Paul Edward Hammond. For reasons not disclosed in the record, the policemen followed the appellee and Hammond as they drove to a shopping center located in Prince George's County. The policemen continued their surveillance as the two men entered a fast food restaurant and, at gun point, robbed Kenneth R. Warne. When the two robbers tried to flee, they were arrested by the police. Subsequent to his arrest, the appellee was held in the Prince George's County Detention Center.

On April 29, 1981, the State's Attorney for Prince George's County filed a sixteen-count indictment against the appellee and Mr. Hammond charging them with armed robbery and other related offenses. On May 6, 1981, ¹ the appellee was arraigned and on May 12, 1981, defense counsel entered his appearance. On that same day, appellee filed a request for a jury trial, a demand for discovery, a motion to suppress and a demand for a speedy trial. ² The charges against the appellee and Mr. Hammond were severed for trial.

On May 20, 1981, a trial date for appellee's trial was set for August 10, 1981. Trial was not held on that date, however, but was postponed at the request of the State. Trial was reset for September 23, 1981. On that date, the appellee appeared in court before the Honorable Howard S. Chasanow and requested a postponement. He explained, through his defense counsel, that it was "absolutely essential" that he call his co-defendant, Mr. Hammond, as a witness. Defense counsel stated that Mr. Hammond had already been convicted for his participation in the robbery, but had not yet been sentenced. Counsel further explained that Mr. Hammond had agreed to testify on the appellee's behalf, but had refused to do so until he had been sentenced for his own conviction. Defense counsel informed the court that Mr. Hammond was scheduled to be sentenced in a couple of days and requested that appellee's trial be postponed until after Mr. Hammond was sentenced. In requesting the postponement, appellee's counsel stated that he knew that because other cases had already been scheduled for trial, it would be impossible to try the appellee as soon as Mr. Hammond became available. Recognizing the inevitable delay, counsel advised the court that the appellee was willing to waive trial within the 180-day period prescribed by Md.Rule 746 a. He qualified this waiver by saying that the appellee was only waiving his Rule 746 a trial right to the extent necessary for resetting the trial. In other words, the appellee was willing that the trial be reset for a date past the 180-day limit of Md.Rule 746 a but he was not willing to forego his right to a prompt trial beyond the time necessary for resetting the trial.

As a result of this request, the trial was postponed and reset for October 27, 1981, this time before the Honorable James H. Taylor. At this hearing, the appellee requested another postponement. He explained that even though a writ of habeas corpus had been issued to the Department of Corrections in Baltimore ³ ordering it to produce Mr. Hammond at the trial, Mr. Hammond was not present. Judge Taylor decided that Mr. Hammond's absence provided "good cause" for a postponement and stated that "we'll take this case out of the assignment for today and would order that the State's Attorney and Mr. Marcus (defense counsel) get us a new trial date".

In addition to requesting the postponement, defense counsel also asked Judge Taylor to reduce the appellee's bail. He informed Judge Taylor that the appellee had been unable to post the bail because it was too high for him. Consequently, appellee had remained incarcerated since his April 1, 1981 arrest. In response to this request, Judge Taylor reduced the appellee's bail to an amount that the appellee was able to pay. The appellee posted the amount of the reduced bond bail and was released by the Prince George's County authorities.

On October 30, 1981, appellee's defense counsel was back in court before Judge Taylor. The reason for this appearance was that defense counsel and the State's Attorney had been unable to agree upon a new trial date. Defense counsel reiterated that when, at the September 23, 1981 hearing, he had said that the appellee was willing to waive his Rule 746 a right, he had waived it only to the extent that was necessary to set a new trial date. Because that new trial date had been set for October 27, 1981, a date within the 180-day period from May 6, 1981, he asserted that the appellee's September 23, 1981 waiver of his right to a trial within the time guaranteed under Md.Rule 746 a was now rescinded.

Judge Taylor did not agree with defense counsel's interpretation of the effect of the appellee's September 23, 1981 waiver. Rather, he reasoned that when the appellee said he was willing to waive his Rule 746 a right to a prompt trial, he excused the State for the delay between September 23, 1981 and the new trial date. Because the new trial was set for thirty-four days after September 23, 1981 (October 27, 1981), Judge Taylor concluded that the way to compute the 180-day requirement for Md.Rule 746 purposes was to count from the appellee's first appearance (May 6, 1981) to the 180th day (November 2, 1981), and then add thirty-four days to determine the date that the 180-day limit was to expire. Using this formula, Judge Taylor concluded that the State had until approximately December 9, 1981 to try the appellee. Based on this reasoning, Judge Taylor perceived no need to issue a formal ruling, but concluded the hearing by saying:

I will just reserve on the motion for the setting of the new trial date until Wednesday (November 3, 1981).

The record does not indicate that Judge Taylor was requested to, or that he took any further action in the case. According to the docket, the assignment office, on November 4, 1981, set a new trial date of November 18, 1981. No objection either by the State or appellee was raised to the setting of this date. On November 13, 1981, however, the State filed a "Motion for Continuance" requesting a postponement of the November 18, 1981 date. The reason for the request was that the victim and most essential witness, Mr. Warne, was "on a prescheduled vacation" in Florida and was, therefore, unavailable for the November 18, 1981 trial date. The appellee objected to the requested postponement. Nevertheless, Judge Audrey Melbourne signed an order that very day continuing the case to an unspecified future date. No hearing was held on this request. On December 2, 1981, the assignment office scheduled the trial for January 8, 1982.

No further court appearance occurred until January 8, 1982 when the parties appeared before the Honorable Albert T. Blackwell, Jr. The appellee complained that his right to a prompt trial under Md.Rule 746 a had been violated and requested a dismissal of the charges. A hearing on the request was held, after which Judge Blackwell concluded that appellee's right to be tried within 180 days under Md.Rule 746 a had been violated. As a consequence, he dismissed the charges and this appeal followed. The question that we must decide is whether appellee's trial was properly extended, thereby negating the 180-day limit of Md.Rule 746 a. To answer this, we must determine how Md.Rule 746 a is to be applied in this case.

Md.Code Ann. Art. 27, § 591, and Md.Rule 746 a require that a trial of a criminal case in circuit court shall be set no later than 180 days after the appearance or waiver of counsel or after the appearance of the defendant pursuant to Rule 723, whichever shall first occur. The statute provides that "[t]he date established for the trial of the matter shall not be postponed except for good cause shown by the moving party...". Furthermore, the change in trial date may only be made by or with the approval of the administrative judge or his designee, Goins v. State, 293 Md. 97, 442 A.2d 550 (1982).

A defendant's right under Md.Rule 746 a is not violated unless the trial is delayed more than 180 days from the earlier of the appearance of waiver of counsel or the appearance of the defendant pursuant to Md.Rule 723. As long as a trial is begun within the 180-day limit, any delay in its commencement is irrelevant for purposes of the rule.

The Court of Appeals has ruled that three conditions are required in order to secure a postponement beyond the 180-day limit. These conditions were explained by this Court in Calhoun v. State, 52 Md.App. 515, 451 A.2d 146 (1982), as being:

First: a party or the court sua sponte must request the postponement.

Second: good cause must be shown by the moving party.

Third: the County Administrative Judge, or a judge designated by him, must approve the extension of the trial date.

If these three conditions are met, the resulting postponement excuses the 180-day limit of Md.Rule 746 a and authorizes the trial to be conducted after the 180-day period has...